Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Balcar v. Kessinger

United States District Court, W.D. Kentucky, Louisville Division

February 20, 2017

PATRICK KESSINGER et al., Defendants.


          David J. Hale, Judge United States District Court

         This matter is before the Court upon a Fed.R.Civ.P. 12(b)(6) motion to dismiss filed by Defendant Elaine Smith, by counsel (DN 39). Fully briefed, this matter is ripe for decision. For the following reasons, the motion will be denied.

         At the outset, the Court observes that on February 15, 2017, Plaintiff filed an interlocutory appeal in the Sixth Circuit which does not challenge a final, appealable decision of this Court. “As a general rule, a district court no longer has jurisdiction over an action as soon as a party files a notice of appeal” unless “the appeal is untimely, presents issues that the appellate court had previously decided in the same case, or is from a non-final, non-appealable order.” Pittock v. Otis Elevator Co., 8 F.3d 325, 327 (6th Cir. 1993). A notice of appeal from a plainly non-appealable order may properly be ignored by the district court. Cochran v. Birkel, 651 F.2d 1219, 1222 (6th Cir. 1981). Accordingly, while the district court lacks jurisdiction to outright dismiss the improper appeal, Dickerson v. McClellan, 37 F.3d 251, 252 (6th Cir. 1994), it may nevertheless proceed to adjudicate the merits of the underlying action as if the improper appeal had not been filed. Cochran, 641 F.2d at 1222. Upon review of the pending notice of appeal (DN 54) filed by Plaintiff, the Court finds that it is not from a final, appealable order, and therefore, does not divest this Court of its jurisdiction.

         Moreover, before turning to the motion, the Court will address Defendant Elaine Smith's name in the docket sheet. She was identified in the complaint caption as “Doctor: Elain Smith.” However, her motion to dismiss sets forth her name as Elaine Smith and states that she is in fact not a doctor but is an APRN.[1] Therefore, the Clerk of Court is DIRECTED to change this Defendant's name in the docket sheet to reflect her correct name, i.e., Elaine Smith.


         Plaintiff filed the instant pro se 42 U.S.C § 1983 action proceeding in forma pauperis. Upon initial review of the complaint under 28 U.S.C. § 1915A, the Court allowed the following claims to go forward: 42 U.S.C. § 1983 claims of excessive force and deliberate indifference to safety and state-law claims of assault and battery against Defendants Patrick Kessinger and Joshua Duggins in their individual capacities; § 1983 claim of deliberate indifference to safety and state-law claims of assault and battery against Defendant Warden Smith in his individual capacity; § 1983 retaliation claim against Defendant Kessinger in his individual capacity; and § 1983 claims of deliberate indifference to serious medical needs against Defendants Warden Smith and Elaine Smith in their individual and official capacities. Plaintiff's claims for deliberate indifference to serious medical needs were based on his allegations that Defendants Warden Smith and Elaine Smith denied him medical treatment for his left eye and back after an alleged assault that was the subject of his excessive-force claims.

         The complaint states that Defendant Elaine Smith is “the Medical Doctor for segregation at Kentucky State Reformatory and is generally responsible for ensuring the provision of medical care to prisoners of and specifically for scheduling medical appointment outside the prison when a prisoner needs specialized treatment or evaluation.” The complaint states that on July 24, 2014, the following occurred:

Captain Patrick [Kessinger], said to me “I know how to deal with a wise guy asking for medical treatment.” He get very mad a plaintiff and charge him like a mad bull seeing red. Plaintiff is setting in his wheelchair went defendant grab the plaintiff behide the neck and slap his face in the floor about 6 or more time. The plaintiff just had left eye surgery that day. The plaintiff surgery end about 2:00 P.M. Benton and Bloom done the surgery. Then the defendant drag the plaintiff thought Dorm 12 to outside yard then up handicap ram at DAL Unit 5 - OIR Max cell. The plaintiff was asking for medical treatment for chest pain and was hurting very badly.

         Plaintiff reports that he was taken to Benton and Bloom the following day to have his left eye checked because of the alleged assault. He states that a doctor at Benton and Bloom ordered Kentucky State Reformatory to give him eye drops three times daily and “keep water on his eye.” Plaintiff states, “On or about July 28-2014, the plaintiff submitted a sick call request seeking an appointment to see the doctor for my back pain very badly because of Captain [Kessinger's] drag plaintiff to segregation and was refuse to see Doctor . . . .” Plaintiff also maintains that he was denied this “after care” treatment for his left eye. Plaintiff states, “Since then, the plaintiff has submitted repeated sick call requests and has filed grievance requests for after care for his left eye and his back pain.” Plaintiff also states, “The failure of defendant [Elaine] Smith and Warden Aaron Smith to provide for the after care for the left eye and back pain constitutes deliberate indifference to the plaintiff serious medical needs in violation of the Eighth Amendment to the United States Constitution.”


         To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[A] district court must (1) view the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. (citing Twombly, 550 U.S. at 556). The complaint need not contain “detailed factual allegations, ” yet must provide “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citing Twombly, 550 U.S. at 555). In addition, “[a] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         A. Failure to State a Claim

          In her motion to dismiss, Defendant Elaine Smith argues that the complaint “lacks the requisite specificity” in stating the factual basis for the claims against her and that Plaintiff has furnished only “vague, unsupported allegations” against her. She argues that Plaintiff failed to indicate who allegedly denied him treatment, when the treatment was denied, or what injury he sustained as a result of the denial. She argues that the only mention of her involvement is in Plaintiff's allegation that “Defendant Doctor Smith is responsible for arranging for specialized care outside the prison.” She argues, “However, there is nothing in Plaintiff's Complaint alleging what exactly Nurse Smith did to violate Mr. Balcar's Eighth amendment rights.” She contends that even if she is the person responsible for arranging outside care, there is nothing in the complaint to indicate that she actually denied medical care to Plaintiff. She further maintains that Plaintiff admits in the complaint that he just returned from a visit to “‘Benton and Bloom on July 25, 2014.'” Defendant Elaine Smith also argues that mere disagreement with the care received does not give rise to a constitutional violation. She states ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.